A Travesty of Justice
"...... Mr. Bush is eroding the very values and principles he seeks to protect, including the rule of law."
Editorial
The New York Times
November 16, 2001
President Bush's plan to use secret
military tribunals to try terrorists is a
dangerous idea, made even worse by the
fact that it is so superficially attractive. In his
effort to defend America from terrorists, Mr. Bush is eroding the very values
and principles he seeks to protect, including the rule of law.
The administration's action is the latest in a troubling series of attempts since
Sept. 11 to do an end run around the Constitution. It comes on the heels of
an announcement that the Justice Department intends to wiretap
conversations between some prisoners and their lawyers. The administration
also continues to hold hundreds of detainees without revealing their identities,
the charges being brought against them or even the reasons for such secrecy.
The temptation to employ extrajudicial proceedings to deal with Osama bin
Laden and his henchmen is understandable. The horrific attacks of Sept. 11
give credence to the notion that these foreign terrorists are uniquely
malevolent outlaws, undeserving of American constitutional protections.
Military tribunals can act swiftly, anywhere, averting the security problems
that a high-profile trial in New York or Washington could pose.
But by ruling that terrorists fall outside the norms of civilian and military
justice, Mr. Bush has taken it upon himself to establish a prosecutorial
channel that answers only to him. The decision is an insult to the exquisite
balancing of executive, legislative and judicial powers that the framers
incorporated into the Constitution. With the flick of a pen, in this case, Mr.
Bush has essentially discarded the rulebook of American justice painstakingly
assembled over the course of more than two centuries. In the place of fair
trials and due process he has substituted a crude and unaccountable system
that any dictator would admire.
The tribunals Mr. Bush envisions are a breathtaking departure from due
process. He alone will decide who should come before these courts. The
military prosecutors and judges who determine the fate of defendants will all
report to him as commander in chief. Cases can be heard in secret. Hearsay,
and evidence that civilian courts may deem illegally obtained, may be
permissible. A majority of only two-thirds of the presiding officers would be
required to convict, or to impose a death sentence. There would be no right
of appeal to any other court.
American civilian courts have proved themselves perfectly capable of
handling terrorist cases without overriding defendants' basic rights. Federal
prosecutors in New York recently won guilty verdicts against bin Laden
compatriots who were accused of bombing two American embassies in
Africa in 1998. Osama bin Laden himself was indicted in those attacks.
Federal courts have ample discretion to keep sensitive intelligence under
seal, while still affording defendants a legitimate adversarial process. The law
already limits the reach of the Bill of Rights overseas. American troops need
not show a warrant before entering a cave in Afghanistan for their findings to
be admissible at trial in the United States.
Using secretive military tribunals would ultimately undermine American
interests in the Islamic world by casting doubt on the credibility of a verdict
against Osama bin Laden and his aides. No amount of spinning by Mr.
Bush's public relations team could overcome the impression that the verdict
had been dictated before the trial began. Reliance on tribunals would also
signal a lack of confidence in the case against the terrorists and in the nation's
democratic institutions.
A better way to administer justice must be found. If Mr. Bush is determined
to bring terrorists to trial abroad, he should ask the United Nations Security
Council to establish an international tribunal like the one set up to deal with
war crimes in the Balkans. The proceedings of this court have been fair and
effective, and it is respected around the world. If Slobodan Milosevic can be
brought to trial before such a court, so can Osama bin Laden.
More than half a century ago the United States and its allies brought some of
history's most monstrous criminals to justice in Nuremberg, Germany. In his
opening statement at the trial of Nazi leaders, Robert Jackson, the chief
American prosecutor, warned of the danger of tainted justice. "To pass those
defendants a poisoned chalice is to put it to our lips as well," he said.
President Bush would be wise to heed those words.
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